Male, Female, Or Neither?

In early November, Germany—which, in part to combat the legacy of the Third Reich, has deliberately asserted the rights of marginalized groups—became the first country in Europe to allow a third gender designation: X, for indeterminate or intersex. (Australia introduced a similar measure in July.) If a baby is born with ambiguous sex characteristics, it won’t be forced to undergo a normalizing operation just so that nurses can tick “male” or “female” on its birth certificate. The legal acknowledgment of a third category should mean that fewer doctors urge parents to have sex-assignment surgery performed on their newborns. Fewer children should suffer the plight described by one person quoted in a report that helped lead to the new law, a German born with ambiguous genitalia in 1965, who spoke of being a “patchwork created by doctors, bruised and scarred.” …

While certain religious groups argue that sexuality is a choice (and certain sexual lifestyles are therefore sinful), no one makes that argument about biology, which might suggest a certain logic to granting rights to genetic difference before sexual preference.

[T]he new policy regarding intersex children is a necessary attempt to remedy a situation that, up until now, has been horribly difficult.

Previously, German parents had just a week’s time to decide whether their intersex children were male or female, and register them appropriately at the standesamt or registry office. The pressure on parents meant decisions would often be made in a state of panic and frequently lead to forced medical operations in the genital area. … Now, the German government and legal experts are keen to stress that this third blank box isn’t an official third gender, or the “other” box – so it doesn’t actually mean that there are now three recognized genders in Germany. It’s seen as a temporary solution for very specific intersex cases – the children aren’t expected to live their lives as X’s, but to make a decision to be male or female at a non-specified point in the future. However, many people view this decision, based on a review by the German Ethics Council, as a huge victory for intersex children. And it really is quite a momentous decision, especially when you consider that up to this point in time, intersex people haven’t had any legal recognition on European birth certificates whatsoever.

Hida Viloria argues that the law gives intersex Germans fewer rights, not more:

While it’s been widely reported that the law gives parents a new “choice” or “option,” it’s clear that the designation is mandatory. As OII Europe, the European affiliate of the Organization Intersex International (the world’s largest intersex advocacy organization), elaborates: “Who determines that a child ‘can be assigned to neither the female nor the male sex’? According to current practice: only medicine. The power to define what sex is and who is assigned to which gender remains intact with the new regulation.” Some claim this will help by giving parents more time to decide whether to label their baby male or female, but since the law states that babies with intersex bodies can not be labeled male or female, the only way for parents to attain those labels for their child will be through the use of “normalizing” genital surgeries. Surgeries deemed so harmful that the United Nations Special Rapporteur on Torture recently called for all member states to ban them. Intersex people in Germany and around the globe have been calling for this ban for decades. However, rather than banning intersex genital mutilation, the German government instead created a law that local intersex advocates believe puts intersex babies at greater risk of being subjected to it.

Nelson Jones points out that intersex people’s challenges extend well beyond the legal:

This is the core of the problem. On one level, humanity has become a great deal more enlightened since Roman times, when the birth of a “hermaphrodite” might be interpreted as an omen of war or natural disaster and the child was liable to be exposed, or since the Middle Ages when such an “unnatural” birth could be seen as evidence of the sin and perversion of the parents. Modern science recognises that biology in its infinite complexity doesn’t care about the neatness of human thinking with its love of binary categories. Being of indeterminate gender is not in itself a disability. …

The problem with surgical intervention isn’t just the theoretical one that it violates the integrity of the body but the practical one that the doctors might well make a mistake. The answer, say campaigners, is to hold off both legal gender assignment and surgery until the child is old enough to make up its own mind as to whether it’s a boy or a girl – or something in-between. Yet such a child, in our gender-obsessed culture, is likely to feel confusion and face prejudice. The stigma of “abnormality” can cause deep psychological scars: every child has a right to feel normal, and social expectations of gender can make it difficult to feel normal in a body that is not unambiguously male or female. Tackling that will be a much larger problem than a simple bureaucratic fix.